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Questions Propounded through the State Department, 

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Department of State, 

Washington, June llih, 1873. 
Messrs. Howsox & Sox, 

Fhiladelphia, Pa.: 

Sirs : — An International Patent Conocress is about to be held in 
Vienna, at which it is proposed that the United States be repre- 
sented. 

In order that the interests of American inventors and manufac- 
turers may be properly represented thereat, information is desired 
on the subjects of inquiry subjoined hereto. 

Will you have the goodness to answer the several inquiries, or 
such of them as you may think proper to reply to, and return 
your answer to Hon. J. M. Thacher, Acting Commissioner of 
Patents, Patent Office, Washington. 

As it is understood that the Congress will convene early in 
August next, it is very desirable that your answer may be re- 
ceived by Mr. Thacher before the first of July. 
I have the honor to be. 

Very respectfully, yours, 

IIAMILTO:^' FISH. 



Subjects of Inquiry: 

1. Is the protection of inventors by patents j ust and expedient, 
and, if so, on what grounds ? 

2. To whom and for what should patents be granted ? 

3. Should the grant depend on preliminary official examination ? 

4. What limitations are proper, if any, as to manufacture of 
the patented article, or payment of additional fees ? 

5. Should a distinction be made between home and foreio-n 
applicants, and, if so, what ? 

6. What has been the influence of patents on manufacturino; 
interests in this country? Examples. 

7. If a maiuifacturer, how is your special branch affiected by 
patents ? 

Statistical as well as general information is desired, and also 
suggestions in relation to any other matter connected therewith. 



EEPLY. 

Philadelphia, June SOih, 1873. 
To THE Hon. J. M. Thacher, 

Acting Commissioner of Patents: 
Sir : — In accordance with the request in the letter of the 
Department of State, we herewith send you our replies to the 
questions there stated. These replies have, from the brief time 
at our disposal for their preparation, been somewhat hastily 
w^ritten, and we have not been able to give to all the queries the 
full and deliberate consideration they call for. Taking the ques- 
tions seriatim,^ however, we have expressed our opinion upon the 
points inquired of, and as fully as time would allow, have given 
^our reasons for that opinion, in each case. 

1. Is THE PROTECTION OF INVENTIONS BY PATENTS JUST AND EXPE- 
DIENT, AND IF so, ON WHAT GROUNDS ? 

It is just, because inventors are producers to the public stock 
and should derive profit from their j)roductions, in proportion to 
the value. 

Expedient because the knowledge of possible profit encourages 
invention. Wanting this possibility, invention would cease to 
be a generally recognized field of labor. 

A main incentive to improvement in the practical arts, is the 
advantage in the competition of trade derived from the possession 

of such an improvement. 

In the absence of protection by law, for the inventor to com- 
municate a knowledge of the improvement, is to place competi- 
tors on an equal footing with himself as regards possession, and 
on a better footing, inasmuch as their enjoyment of that possession 
will not be embarrassed by any such expenditure of time, la- 
bor and money, as the first practical application of the idea 
may* be presumed to have necessitated. Without the protection 
of law, then, the inventor has the alternative of retaining his 
advantage by secrecy if he can, or of seeing a crowd of competi- 
tors availing themselves of the fruits of his ingenuity, industry, 
and expenditure, and this (both from the numbers of competitors 
and because he has relieved them from the burdens which have 
hampered his own eftbrts), with the quite probable eftect of find- 
ing himself in a worse position in the race of competition than 



he was before, an evil which it is clear the unequal distribution 
of capital must tend to aggravate. 

The utter futility of attempting protection by secrecy m a 
great majority of cases, is too apparent to require argument, and 
not less clear is the impolicy of compelling the resort to such an 
attempt. 

It is to destroy confidence between man and man, and the 
hampering of business is the least of the many mischiefs likely 
to arise from this; it is deliberately to close up avenues of knowl- 
edge, to deprive the public of useful information for indefinite 
periods, in some cases perhaps for all time. 

It is manifestly important to the public that there should be a 
steady improvement in the practical arts, that improvements 
made should be as speedily and widely available as possible ; to 
this end that there should be the most active and free competi- 
tion. Here it may be urged, that the grant of patents is a check 
on competition, by allowing to some one party the exclusive right 
of making and vending something. But free competition means 
— competition in which the parties can pursuo their business upon 
terms as equal as respective skill, industry, and means will allow. 
It is not, therefore, free competition, in the true sense, if the in- 
vention which has cost one man an expense of thought, time and 
money, is available without that expense to his competitors. That 
destroys the equality by actually making the inventor's ingenuity 
a disadvantage to himself. It is no answer to say that the 
experience of one competitor to-day may be that of another to- 
morrow, that the risk is equal. There could be no real equalit}^ 
of risk, but the risk obviously enough, would weigh most 
heavily upon the most meritorious, the greatest producers would 
be the greatest losers by such a system of exchange, or reciprocal 
piracy. 

But it may be said again, the inventor would derive from 
his ingenuity the like advantage as from his skill, in the reputa- 
tion it would give his productions, and the consequent demand 
for them. The laws of all civilized nations have recoo-nized that 
species of property which consists in the reputation of a trader, 
acquired by his skill and industry, and have jDrovided means by 
which that property may be secured. A simple mark, to the use 
of which the law gives its appropriator an exclusive right, will 



serve to distinguish his goods in the market and enable him to 
reap the j Qst reward of his skill. But skill differs from inven- 
tion, inasmuch as it requires considerably more than simple 
mental apprehension to pass the possession of it from one to 
another. 

The skill upon which a trader's reputation is built does not 
pass from him with the goods w^hich it has produced. Others 
may acquire equal or greater skill, but only by equal or greater 
exertion of the same qualities, by which his own skill has been 
acquired. 

But the original thought embodied in a process, machine or 
device is thereby exposed for any ordinary intelligence to co]3y ; 
it passes with the thing in which it has found expression. Its 
•origination can confer no beneficial reputation beyond the fleeting 
one that may arise from mere priority of possession, which may 
confer a temporary monopoly. 

The duration of this will be the less as the apparent value of 
the idea and the ease of appropriating it are the greater. The 
fleeting monopoly gone, the idea soon ceases to be to the originator 
the source of any special reputation ; for that, while it lasted, rested 
not upon the origination, but upon the exclusive possession of the 
thing, which compelled the public to seek it there. After the 
idea has passed into the possession of competitors the only ques- 
tion with the public is, where can we buy w^hat we want most 
advantageously to ourselves. In very rare cases, the answer to 
this question may be such as to maintain a monopoly in the hands 
of the originator. This can only arise from some accident of 
power, the possession of great means, special skill and facilities, a 
-condition of affairs undesirable for a variety of reasons. Such 
monopolies must, as a rule, find all their security and value for 
the holders only in circumstances rendering them prejudicial 
to the public, inasmuch as they import excessive individual power 
likely to be selfishly used. 

It is not good that a monopoly of production should rest solely 
on power to shut out or crush competition. Fortunately those 
who alone would be able to maintain such monopolies are not 
those amongst whom the exercise of invention is conspicuous. 

Their very position, power and consequent habits of thought 
and action are opposed to the exercise of that faculty, whose most 



useful activity depends chiefly upon the spur of free and equal 
competition. 

Those then who might, would not because they need not, profit 
by such a condition of afi'airs, because their ambition might be 
gratified, in other more obvious and less troublesome ways. But 
their power, though thus useless to foster the exercise of ingenuity 
in themselves, would very efi:ectually operate to prevent its exer- 
cise b}^ those less favored. 

Small producers would find but a poor compensation for their 
ingenuity, time and labor in the transient reputation which a 
transient exclusive possession resting merely on priority in time 
might give them. They would not be slow to discover, that to 
invent was actually to feed at their own expense the reputation 
of more formidable rivals. Thus the relative positions of difl'er- 
ent classes of trading producers would operate to prevent inventive 
activity in an}^ 

Turning now to the class of non-trading producers, employees 
having no direct business connection with the public, a class from 
which a large, perhaps the largest, projDortion of the most useful 
invention proceeds. To talk to them of the advantage reputation 
would give them, is mockery. 

Reputation can be of moment to them as workmen, on]y as it 
aflfects their ability to obtain employment at good wages. This 
their repute for skill will do, because hy purchase their skill 
becomes the secure property of the purchaser so long as the con- 
nection lasts. But of what service to them would a reputation for 
ingenuity be, if employers could approj^riate the fruits of that 
ingenuity without payment, but could not, by payment, secure 
them as peculiar property? In a condition of things wherein 
employers could not find their account in the personal exercise 
of invention, they would hardly consider its exercise by em- 
ployees an element of value. 

AVe conclude that the active and free competition which the 
public interests require as a means of promoting the progress of 
the practical arts, is promoted, not hindered, by some public 
recognition of the right of inventors "io profit by the exercise of 
their ingenuity. To assure to them the exclusive right of mak- 
ing, using, and vending the thing created seems at once the most 
obvious and the best sort of reco2;nition. 



6 

So far as rivals are concerned this is just, since it is merely to 
restrain them from appropriating the creations of others — it 
takes nothing from them, hut prevents them taking from another. 
It is the intervention of law to secure to the inventor that personal 
advantage which is the only practical incentive to invention, as 
it is its just consequence. 

These exclusive privileges may be said to operate against public 
interests so far as they naturally tend to delay the opening 
up of new fields of competition. This is a disadvantage which it 
is economy for the public to undergo, so far as will suiBce to 
encourage by paying inventors ; and this points to limitation in 
time. 

Exclusive privileges properly limited, then, so far from being 
in their general result checks upon competition, are really spurs 
to that desirable condition, and simply because they hold out to 
a man that pros23ect of quid j^^^o quo, without which he cannot- 
reasonably be expected to labor. 

Admitting the soundness of this view, to induce the creation 
of new fields of competition by consenting to postpone for a time 
the general enjoyment of them in favor of the creators, is mani- 
festly economical. 

2. To WHOM AND FOR WHAT SHOULD PATENTS BE GRANTED ? 

To any Inventor (or his legal Representatives) for any new or 
improved and useful production or means or mode of production 
in the practical arts. 

3. Should the Grant Depend upon Preliminary Official 
Examination ? 

This question we answer very emphatically, Yes ; and for the 
following reasons : 

1. Because such examination is necessary to give Patents even 
2i prima facie presumption of validity. 

2. Because it is the most effectual check possible upon the 
creation of false titles, or conflicting titles. 

3. Because it leads to greater care and precision in the pre- 
paration of specifications and claims. 

4. Because it tends to increase the availability and value of 
patents as negotiable property. 



5. Because it is to relieve Inventors of a duty which otherwise 
they would have to undertake for themselves ; and which they 
could perform, if at all, only at much greater expense of time and 
money, and not nearly so welL 

6. Because the system necessarily brinsjs about a vast and well 
arranged, and accessible collection of -information, touching the 
practical arts, and to this purpose appropriately devotes a large 
proportion of the fees paid by Inventors. 

To these, if time and space allowed, we might add other rea- 
sons, all of which we consider to have been well illustrated 
by the operations of our own examining system. 

We are aware that contrary impressions exist as to the workings 
of that system. 

To see how much the operation and effects of our examining 
system are misunderstood abroad, especiall}^, we have but to turn 
to the testimony, taken before a Committee of the British House 
of Commons in 1872. 

Let us see what papers were offered in evidence to that Com- 
mittee with the view of enliMitenino* it as to the American 

o o 

system. 

First, we have an extract from the report of the Commissioner 
of Patents Journal of August, 1856, which contains extracts 
from Commissioner Mason's report of 1856 ; second, extracts from 
the report of Commissioner Foote, for the year 1868 , and, third, 
sundry articles taken from an American periodical, the Scientific 
American, Ayhich w^e understand to be published in the interest 
of a firm of Patent Agents, and to which much more im- 
portance appears to be attached in England than in this country : 
One of these articles contains a very unfair quotation from a 
decision of Commissioner Legget, unfair, because the quotation 
standing by itself does not convey the full meaning of the de. 
cision. 

In addition to this documentary evidence, there is the oral 
testimony of an American practicing as a patent agent in Lon- 
don, and avowedly opposed to official examination. This gen- 
tleman illustrated his knowledge of our patent laws, by giving 
the Committee the startling information that, ^' Patent cases 
in America are mostly tried in the United States Courts, but with 
the right of bringing an action in the State Courts^ " which our 



8 

American Patent Lawyers will take as a clear case of domestic 
news from abroad. 

Judo-e Mason ceased to be Commissioner of Patents in 1856 
seventeen years ago. The accession of the lion. S. S. Pisher to 
that office took place in 1869, and he was succeeded in 1871 by 
the present incumbent, the Hon. M. D. Leggett. 

Judge Mason was an accomplished officer. He was perhaps the 
first Commissioner to set an example of the exercise of judicious 
liberality towards inventors ; he was the lirst to institute an ap 
peal within the office from the decision of the Examiners, and he 
made such important improvements of administration as the then 
condition of the law would permit. Pat there have been altera- 
tions of the law since Judge Mason's time, and wonderful 
alterations for the better in the administration of the office. 

The accession of Commissioner Pisher was an era in the history 
of Patent Office practice. He was the first to thoroughly impress 
it upon the Examiners that they w^ere subordinate to the Com- 
missioner ; he conducted the affairs of the office with unpre- 
cedented energy, and brought abf)ut a systematic practice which 
received general commendation. There was an interim of a few 
months between the resignation of Commissioner Pisher and the 
appointment of Commissioner Leggett, and the affairs of the office 
during this interim were administered by Acting Commissioner 
Duncan, another accomplished officer. To the present Commis- 
sioner Leggett, we are indebted for the effective manner in which 
he has carried out the system of competitive examination under 
the Civil Service Act, resulting in the promotion of well-trained 
officers to the position of Examiners, and securing efficiency and 
uniformity of action, in marked contrast with the confused and 
various actions of different Examiners, who in former years Avere 
appointed through political influence or some asserted but not 
tested acquirements. This system must effectively clear from the 
office all ^elf-willed, incompetent officers, and eventually bring the 
management of the Bureau to a state of perfect order and system. 
We are indebted also to Commissioner Leggett for the estab- 
lishment of the Official Gazette, a weekly journal, containing 
decisions of the Courts and of the Patent Office, the claims of 
every Patent and reissued Patent granted, and a diagram illus- 
trating every Patent with sufficient perspicuity to give with the 



9 

claims a general idea of the invention. Thus we have a weekly 
record of official acts of the Commissioners, and of the progress 
of the useful arts in this country. More than this, every Patent 
is printed and copies can he procured at once at a cost of twenty- 
five cents, and in quantities at a cost of ten cents each, and to add 
to this important Patent Office literature we have monthly 
volumes at ten dollars each, each volume containing a complete 
copy of text and drawing of every Patent granted during the 
month. 

There are published Reports of the decisions of Ex-Commis- 
sioner Fisher, of Ex-Acting Commissioner Duncan, of Commis- 
sioner Leggett, and of Assistant Commissioner Thacher, the 
published Rules and Practice of the Patent Office, all of which 
tend to throw the clearest light upon the working of the Patent 
Office. But not one man was found to quote from these modern 
documents, and to explain therefrom to the House of Commons 
Conmiittee the j^resent condition of the United States Patent 
Office. 

But instead, the Committee, was treated to antiquated official 
documents, and to the unofficial dicta of a newspaper, purporting 
to show that the examining system was a failure. 

This it never was at the worst of times ; its benefits have ex- 
ceeded its mischiefs under the most defective administration, and 
whilst official position depended not U230n merit but upon political 
influence, and no thorough system of subordination existed in 
the office. A worse condition than this for the administration 
of an examining system, one less favorable to the development of 
its intrinsic merits, could not be imagined. Had the system been, 
on the whole, a failure, under such circumstances, the result would 
have proved nothing as to the propriety of preliminary official 
examination. 

One witness before the House of Commons Committee, makes 
much of a quotation from a decision of Commissioner Leggett 
in the Moore case (C. D. 1871), in which he candidly complains of 
the irregular and unequal action of some of the Examiners in reject- 
ing applications for Patents, and the witness argues from this 
quotation that the whole system is a failure. 

The witness was very pertinently asked in reference to the par- 
ticular mischiefs pointed out in this quotation, whether he really 



10 

thought that such an abuse of examination is any argument 
against the use of it. To which the answer, not ver^^ direct, though 
sufficiently positive was made, " I think every patentee ought to 
be his own examiner: I think he is entitled to that." 

The argument of this witness appears to have been in substance 
that regarding the property of an Inventor in any new and use- 
ful invention as a species of natural property, he should therefore 
receive, for the asking, a patent for an^^ invention which he might 
declare new and useful, the declaration to be such as to imply 
that it was founded upon search made by himself. We imagine 
most inventors would regard this as a privilege of doubtful ad- 
vantage ; that the public at large would regard it as likely to lead 
to much greater mischief than could arise from official examina- 
tion. 

But though the witness would leave it to the Inventor himself 
to ascertain, or to declare that he had ascertained the novelty of 
his invention, he would have a special tribunal to annul patents 
bad for want of novelty. It is hard to see why the necessary 
just discretion to this end could not be more beneficially exer- 
cised to prevent the issue of such patents. 

It must be remembered that all the officers mentioned above, 
Fisher, Duncan, Leggett, and Thacher, are in favor of an official 
examination; more than this. Judge Mason as recently as March, 
1871, has admitted the benefits — public and private — of our ex- 
amining system, adding, however, the suggestion that "there may 
be some doubts as to whether rejections by an examining corps 
should be absolute or only advisory, leaving the applicant a right 
notwithstanding an adverse opinion by the office to take his 
patent at his own risk, subject to the unfavorable moral eftect of 
such adverse opinion." 

"We do not think patents with such a taint upon them would 
be very available property; and hardly see why the examiners who 
could be thus trusted to send patents out, with detrimental 
opinions attached, could not be trusted with the power of refus- 
ing patents, especially as refusal would probably be the most 
merciful and least injurious course of the two. 

In the same American newspaper whose opinions were made to 
figure so extensively in the inquiries before the House of Commons 
Committee, an editorial has recently been published in response 
to the official queries we are now discussing. 



11 

This editorial finds its premises in doctrines as to the rights of 
inventors, widely differing from those just quoted from other 
quarters. A Patent, it says, "is an infringement of equal rights, 
and therefore, untenable on grounds of justice. An inventor is not 
entitled by any process of natural right or natural justice to be a 
monopolist over his fellows, but on the contrary is bound by the 
strongest natural obligations //re^j/ to contribute his best powers 
mind and body to promote the common w^elfare." Patents are 
therefore granted on the ground of expediency not oi justice. 

Without stopping to discHss the sharp distinction here drawn 
between justice and expediency, we may point to another 
paragraph in the course of the same article. 

The paragraph in question tells us that the idea generally pre- 
vails in Europe, that by the grant of a patent, the Government 
gives away to the inventor a valuable privilege, for which the re- 
ceiver should pay liio'h fees, &c., &c. But this idea, it tells us, is 
false, and if any obligation is conferred by either side, it is on the 
part of the inventor, who for the paltry reward of a patent, places 
the Government in possession of his new invention, from which in 
due time the government is strengthened, its taxable resources in- 
creased, and the wealth of the nation augmented. This seems to 
be hardly consistent with the ground lirst taken, according to 
which, the inventor in placing the public in possession of his in- 
vention, does simply that which it is liis natural duty to do freely, 
so that if there is any obligation conferred by either side, clearly 
it must be by the Government which gives a patent for that to 
which it is freely entitled. 

The article which is marked by this apparent inconsistency is 
chiefly devoted, however, to an attack upon the system of prelim- 
inary official examination, as being attended with a variety of 
troubles, expenses, and difficulties, and inefficient. 

It complains that the system involves the employment of a large 
number of officials, and of another large number of patent lawyers 
and solicitors, for which inventors are heavily taxed. 

As to the army of patent lawyers and solicitors to which the 
writer of the article especially objects, we do not see that to dis- 
pense with official examination would be likely to reduce the 

number. . , 

We think there would be more litigation, and consequently, 

increased business for patent lawyers. 



12 

t 

Inventors would feel as mucli, yes, more necessity for the ad- 
vice of patent solicitors in drawing specifications and claims, and 
it is not our experience that the army of patent solicitors tends to 
diminish, with the apparent ease with which money may he made 
in that business. 

The cost of the large number of oiScials employed under the ex- 
amining system would, we think, be more. than replaced, were 
that system abolished, by the increased cost of the large army of 
patent solicitors and lawyers. And would the necessary work of 
preliminary examination be better performed through the medium 
of private practitioners, than by official examiners? We say 
necessary work, for even the article which we are considering 
impliedly admits the necessity of preliminary examination by 
some one. 

"Let those who are foolish enough," it says, "to pay fees for a 
patent on an old invention do so. The number will be small and 
they will harm none but themselves," which means, of course, 
that the inventor will inform himself as to the novelty or an- 
tiquity of an invention before taking his patent. 

We think that any experienced inventor will reply to our ques- 
tion, that the action of official examiners is generally more likely 
to be correct, and the more so that their position is one of more 
direct responsibility and is not that of advocacy, as the position 
of solicitors would be, but one of entire impartiality. 

But the editorial to which we have reference further objects to 
official preliminary examination, that it has .become superfluous 
owing to the present complete system of publishing patents, render- 
ing them accessible to inventors generally ; with these, it is said, 
the inventor may now readily supply himself, or get access to 
every patent ever issued. But this would involve expense of time 
and money, and in many instances very great expense. Then the 
official examiner has these complete records immediately at hand. 
They facilitate his examination to a greater extent than they can 
that of the inventor. 

But it is said, "the inventor's eye is always quicker to detect 
points of resemblance or difference than any official examiner can 
be, and he understands better than the official what ought or 
ought not to be claimed." This is a bold assertion, and one which 
we believe to be utterly incorrect as to the great mass of inventors. 



3 



It implies that the inventor is more capable than the official of 
performing a duty, which onl}^ casual with him, is with the 
official, habitual, and this too in a matter as to which the official 
mind would be naturally most unbiassed. 

We think that most patent lawyers or solicitors will bear us 
out in the assertion that it is not characteristic of inventors gen- 
erally, quickly or fully to apprehend either the nature of their 
own rights, or the real relation of these rights to others. 

Moreover the work of examination involves, or should involve 
something far bevondmere perception of points of resemblance or 
diiference; it involves a knowledge of the law, profitably to apply 
such perception, and form a judgment as to what should or should 
not be claimed. Whether the average inventor is more likely to 
possess this knowledge than the average official, owing his posi- 
tion to apparent competency, we leave to the judgment of our 
readers. 

Referring, however, to the present Patent Office Publications, 
we see in them one of the most valuable out-croppings of the ex- 
amining system — useful as educators of the inventive mind in the 
principles governing and affi3cting inventor's rights, tending to 
dissipate much ignorance, reform many false ideas, and thus to 
obviate many unfounded assertions of claims, to the great benefit 
of inventors themselves, and to the relief of the Patent Office from 
much unjDrofitable labor. 

We conclude that the risk of liability to err in judgment as to 
novelty, is infinitely greater in the nature of things, with inven- 
tors or their private counsel, than with properly selected and 
trained official examiners, and that inventors could not conduct ex- 
aminations for themselves or through private counsel, either so 
cheaply or so reliably as through the medium of such public offi- 
cers. 

Our opinion is, and probably in this the author of the article 
we have been quoting from will not be inclined to difier with us, 
that the immediate efi:ect of an abolition of official examination 
would be to throw the work of examination into the hands of 
solicitors. I^ow, whoever performs the work is really an ar- 
biter between inventors themselves and between inventors and 
the public at large, and to take this work of arbitration from the 
hands of public officers, directly responsible to the Government, 



14 

which may assure their fitness and competency, and place it in 
the hands of private parties whose responsibility or competency 
is unascertained, would in our judgment be a most unwise pro- 
ceeding, whether as regards the interests of the public at large or 
of inventors. 

The best of men may hesitate to be judges in their own cause, 
which is just what inventors making their own examinations 
would be. 

Turning to the administration of our Patent Office, we may 
safely say that since the accession of Commisioner Fisher to the 
present time, a constant improvement has taken place. 

Examiners have been taught that they are subordinates of the 
Commissioner — the head of the otHce — that they must follow his 
rulings as set forth in the published decisions, and must strictly 
conform to the rules. They must be competent to perform their 
duties properly or must give way to more competent men. 

Men trained in the office are promoted in accoixlance with their 
proficiency, as proved by the test of competitive examination. 

Injustice to an inventor in the Patent Office, as its afifairs are at 
present administered, seems extremely unlikely. If an application 
is rejected for want of novelty by an examiner, the applicant can 
have a re-examination by the same officer, and if the latter again 
rejects his case, he can appeal, on payment of a moderate fee, to 
the Board of Examiners, and then for a further small fee, to the 
Commissioner of Patents, from whom in turn, he can appeal to 
the U. S. Circuit Court for the District of Columbia. 

But this very thorough S3'stem of appeal is objected to as in- 
volving vexatious delays, and yet not sure in its results ; it is 
said that even after an application may have been successfully 
urged through a number of appeals, a Court may afterwards dififer 
in opinion from the officers who made the preliminary examina- 
tion, and declare the Patent bad. 

That such may be the case, that there may be questions of such 
nicety and difficulty in the consideration of claims of invention 
as to involve this difference of opinion among competent judges, 
appears to us to be in fact, a very strong argument in favor ot 
official examination as the most likely to be intelligent, impartial, 
and thorough, and of a thorough system of appeals as at once a 
means of protection to the public against the issue of bad patents, 



o 



and a security to the inventor against possible mistakes of judg- 
ment injurious to his individual interest. 

It must be allowed, however, that though the rights of appli- 
cants are most carefully guarded by the examining system as 
at present carried out, it is a question whether the rights of the 
public are equally well considered, whether patents are not issued 
hy primary examiners, which should not be granted. This sub- 
ject has received the most studied consideration at the hands of 
Commissioner Leggett, who originated a bill brought before the 
last Congress, and to be considered by a future Congress, which 
will provide for a revision of the action of examiners in the 
grant of patents by a competent Board, and it would certainly 
appear that Jhe right of the public demands this. 

It is further objected to official examination, or rather to the 
system here, that in some cases where the inventor is entitled to 
a patent, he is rejected by reason of the stupidity and incapability 
of the official examiner; and on account of poverty, unable to pay 
the expenses of further prosecution, the applicant is compelled to 
abandon his attempt to procure a patent. 

Are stupid and incapable examiners necessary concomitants of 
an official examining system? or are they not the accidents of 
an improper system of appointment to office? 

To this last cause, undoubtedly, are to be attributed such mis- 
chiefs. 

We have already alluded to the late changes in the mode of 
appointing examiners, changes which have obviated, and will con- 
tinue to obviate the danger of stupid and incapable examiners. 

AVith competent examiners and with cases properly prepared 
and presented, the delay and expense of appeals are really likely 
to occur only in cases of such doubtful nature, as to make the de- 
lay and expense justifiable in the interests of the public, and really 
beneficial to the inventor, having regard to his future interest. 

We are of decided opinion that the charges made against the 
examining system, are legitimate arguments only against de- 
fects of administration, traceable to a bad system of appointment 
to office, a mischief which is being rapidly remedied. 

We regard official preliminary examination as sound in theory 
and beneficial in practice. 



1(3 

What limitations are proper, if any, as to maxueacture of 
patented articles, or payment of additional fees ? 

To the last braocli of the question, we reply that we do not 
think it proper to demand the payment of additional fees. Such 
fees are objectionable as being in the nature of a special tax upon 
the industry of patentees, and as seeking to make patent property 
a special source of public revenue. 

We are of opinion that in the first place, no larger fees should 
be charged than may be necessary to cover the expense of a 
thorouo-h and beneficial administration of the law, and that with 
these fees, the expense to the inventor should end. 

If, however, additional fees be urged as a spur to the industry 
cf inventors, and a mode of weeding out useless patents, we reply 
that as a means to that end, they are open to all the objections 
which mav be uro^ed as^ainst conditionino; the continuance of a 
patent upon its operation within a certain limit of time, wdiile 
the latter plan is more direct and effectual. We are inclined to 
doubt the propriety of either plan; and to take the view that the 
inventor's part of the contract should be considered as executed 
when he has clearly and fully disclosed a new invention, has 
specified his claim of novelty, and paid the administrative fees. 
This done, we do not think that the patentee should be further 
taxed, or should be told that unless he avails himself of his prop- 
erty within a certain time, he will forfeit it. 

Such a prescription we regard as arbitrarj^ and more likely to 
cause injustice to meritorious patentees than to work any real 
benefit to the public. 

Useless patents, useless in the strict sense of the word, can in- 
jure none but the holders, while what are known as " Obstructive" 
Patents, by which we understand to be meant patents for inven- 
tions made practically useful only by the inventions of others, 
must have a measure of utility to be " obstructive" and so should 
entitle the. patentees to an equal chance of proportionate reward. 
We think guards much more effectual and more correct in prin- 
ciple against mischief from such patents lie : 

First, in a thorough system of preliminary examination to 
ascertain not only the novelty of inventions, but that the lan- 
guage of the specifications and claims is not more than commen- 
surate with the real extent of invention ; for after all, perhaps, 



17 

mere lans^uaoce is the most fruitful source of obstruct! veness in 
patents. 

Second, in the equitable rulings of the Courts, rebuking and 
discouraging the possible unreasonable selfishness of " obstructive" 
patentees. As to whether it would be politic to arm the Courts 
with a wider discretionary power to this end, we have not now 
the time to do more than query. 

We summarize our opinion in saying, that we regard demand 
for additional fees as altogether objectionable, as not even the 
most effectual way of reaching the end for which alone it might 
possibly be justifiable. As to limiting a time for manufacture of 
the invention, we think, that to recall the history of the intro- 
duction of some of the most meritorious inventions of the day, 
and to reflect upon the position of many of the most useful in- 
ventors, will suggest the grave injustice likely to arise from such 
a measure. 

If there were a limit of the kind, it should be very much longer 
than any heretofore adopted, not less say, than half the term of 
the patent : nor should this be conclusive. Patentees should be 
allowed to show cause for exemption from the operation of the 
rule. This we are aware would be to complicate the administra- 
tion of the law, and to invite much shuffling and evasion. We 
suggest it, therefore, only as a less evif than an arbitrary limita- 
tion. We believe it the better plan to leave inventors unem- 
barassed in the exercise of their patent privileges. 



5. Should a distinction be made between home and foreigin 
applicants ? and, if so, what ? 

We think none whatever. To distinguish between home and 
foreign inventors is to pre-suppose that the recognition of the 
latter is matter of favor. We think it the sounder view to regard 
the benefits of the Patent Law as matter of contract between the 
public and inventors, regardless of nationality. 

Inventive talent is confined to no locality, its fruits are equally 
beneficial from whatever source it comes, and there is no principle 
justifyino; the recognition of domestic invention but applies with 
equal force to that coming from abroad. It may be said that in 
these days of perfect communication, foreign inventions of value 
are sure to find their way here, sooner or later, without the inter- 



18 

vention of the originators. Disregarding the questionable 
principles involved in this ground, and admitting its truth to a 
certain extent, it is certain that to protect foreign invention is in- 
comparably the most certain and speedy way of securing its bene- 
fits. It would seem the clear policy of every nation, individually 
considered, to make its territories, so far as law would do it, an 
inviting field for the inventive talent of the world. This is not 
to discourage native ingenuity, but the contrary, by throwing it 
m6re upon its own resources, by calling for more independent and 
original efforts, making it more self-dependent. We think, in 
short, that the public are gainers by the most liberal recognition 
of foreign ingenuity, and that as regards home inventors, only a 
very narrow, mistaken spirit could find Siuy real benefit to them, 
in measures which should tend either to exclude foreign inventors 
from, or embarass them in, the race. 

6. What has been the influence of patents on manufac- 
tuelna interests in this country ? 

Beneficial in the highest degree, in introducing new manufac- 
tures, new and improved modes and means of working, econo- 
mizing labor, and increasing the productive power of capital. 

We fancy that there is scarcely a manufacturing interest exist- 
ing which will not furnish numerous illustrations of this truth. 



Entered According to Act of Congress, in the Year 1873, by HOWSON & SON, 
IN THE Office op the Librarian op Congress at Washington. 



CJB 



LIBRARY OF CONGRESS 



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019 935 680 



